Planned Parenthood (‘‘Nuremburg Files’’) Litigation

The Freedom of Access to Clinic Entrances Act (FACE) proscribes using threat of force to intimidate a person accessing reproductive health services. In 1995, abortion providers sued several anti-abortion organizations and individuals for violating FACE by means of threatening posters and a Website.

The defendants were responsible for posters containing the caption ‘‘WANTED’’ or ‘‘unWANTED,’’ along with an abortion provider’s name, address, and other personal information. Shortly after some of those posters appeared, the featured physicians were killed by anti-abortion extremists. The defendants were also responsible for the ‘‘Nuremberg Files’’ Website, which identified a number of abortion providers. The names of those providers who had been killed were crossed out, and the names of those who had been wounded were grayed out.

The physicians won a verdict of $107 million, but the defendants contended that the posters and Website were protected speech under the First Amendment and therefore could not be punished. The defendants won initially on appeal before a panel of the Ninth Circuit Court of Appeals, but subsequently lost after rehearing by a larger panel. That court decided that the context of anti-abortion violence had to be taken into account in determining whether the posters and Website were illegally threatening violence, as opposed to (permissibly) endorsing others’ violent acts. A true threat, unprotected by the First Amendment, is one that a reasonable person would expect the listener to understand as an expression of intent to harm, though the speaker need not have the intention of carrying it out. Since the posters and the Website met the criteria of true threats, the defendants had violated FACE and the verdict was upheld.

B. JESSIE HILL

References and Further Reading

• Elrod, Jennifer, Expressive Activity, True Threats, and the First Amendment, Connecticut Law Review 36(2) (2004): 541–608.

Cases and Statutes Cited

• Freedom of Access to Clinic Entrances Act, 18 U.S.C. } 248

See also Anti-Abortion Protest and Freedom of Speech; Freedom of Speech and Press: Nineenth Century; Freedom of Access to Clinic Entrances (FACE) Act, 108 Stat. 694 (1994); Threats and Free Speech